John Roberts: Switch hitter?
conservative justices to strike down the heart of President Obama's health care
reform law, the Affordable Care Act, but later changed his position and formed
an alliance with liberals to uphold the bulk of the law, according to two
sources with specific knowledge of the deliberations.
Roberts then withstood a month-long, desperate campaign to bring him back to
his original position, the sources said. Ironically, Justice Anthony Kennedy -
believed by many conservatives to be the justice most likely to defect and vote
for the law - led the effort to try to bring Roberts back to the fold.
"He was relentless," one source said of Kennedy's efforts. "He was very
engaged in this."
But this time, Roberts held firm. And so the conservatives handed him their
own message which, as one justice put it, essentially translated into, "You're
on your own."
The Atlanta-based federal appeals court said Congress didn't have that kind
of expansive power, and it struck down the mandate as unconstitutional.
On this point - Congress' commerce power - Roberts agreed. In the court's
private conference immediately after the arguments, he was aligned with the four
conservatives to strike down the mandate.
Roberts was less clear on whether that also meant the rest of the law must
fall, the source said. The other four conservatives believed that the mandate
could not be lopped off from the rest of the law and that, since one key part
was unconstitutional, the entire law must be struck down.
Because Roberts was the most senior justice in the majority to strike down
the mandate, he got to choose which justice would write the court's historic
decision. He kept it for himself.
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